An attorney has filed a motion to dismiss all charges stemming from the arrest of the Lake County Leader editor on Oct. 1 while he was taking photographs of an accident on Montana 35.

Editor Vince Lovato, of Polson, was charged with resisting arrest, obstruction of justice and disorderly conduct. An omnibus hearing is scheduled Monday morning.

Lovato’s attorney, Mike Meloy of Helena, filed the motion to dismiss Nov. 6 on the basis of his client’s First Amendment and Fourth Amendment rights.

Meloy claims that Lovato, as a photographer, “had a right to record, through his photographs, the actions of the police officer, the accident scene and the driver of the vehicle.”

Meloy alleged that the arresting officer, Montana Highway Patrol Trooper Anthony Isbell, had no probable cause to make a warrantless arrest and “he arrested the defendant for the sole purpose of preventing him from exercising this well-settled constitutional right.”

In addition, Meloy said “there was no yellow ‘crime scene’ tape nor any other visible boundaries demarking an investigation site,” and that “at no time did anyone advise the defendant that he had entered a ‘crime scene.’”

Deputy Lake County Attorney James Lapotka, in the state’s response to the motion to dismiss filed Nov. 21, said that the motion must be denied “because there is probable cause to charge and arrest the defendant for obstruction of justice and even if there were not, dismissal of the case is not an appropriate remedy.”

Lapotka argues that officers on scene were still trying to evaluate the danger of a leak from a truck involved in the accident — a diesel cargo tanker hauling hazardous flammable material that was leaking brake fluid when emergency vehicles arrived. The tanker had been hit head-on by an allegedly drunk woman driving a Toyota Camry on Montana 35 northeast of Polson that afternoon.

Lapotka states that emergency personnel were working to “extricate the drunk driver and ensure there was no leak of potentially hazardous material onto the roadway creating a risk to the public and to Flathead Lake.” He also says that the stability of the dangerous tanker had yet to be determined and the drunk driver’s injuries had yet to be assessed.

The state’s response continues, “Trooper Isbell noticed several items of evidence inside the drunk driver’s vehicle and was attempting to control the scene, preserve evidence, protect public and environmental safety and assist with an ongoing medical emergency.” Officers from the Montana Highway Patrol and Lake County Sheriff’s Office had blocked traffic on the highway and parked patrol cars with flashing lights on the road to “create a perimeter.”

Lapotka claims that Lovato walked past two of the patrol cars when Isbell instructed him to step behind the patrol cars until the scene was secure, and that “the defendant acknowledged that he would follow the trooper’s command but then failed to move behind the patrol cars as instructed.” Lovato was then arrested and charged with obstructing a peace officer.

The state argues that Lovato then resisted arrest by pulling away from Isbell, refusing to follow commands, attempting to pose for another photographer while being arrested, falling intentionally and refusing to enter the back of Isbell’s patrol car.

The disorderly conduct charge stemmed from Lovato’s conduct after being arrested, according to Lapotka’s court response.

Lovato is said to have begun yelling profanity at Isbell and Lake County Deputy Ryan Funke, who reportedly asked Lovato to refrain from using profanity. Lovato allegedly responded, “Go to hell.” According to the state’s response, Lovato told officers that he was “on your side, I was trying to make you guys look good,” and proceeded to call Funke a [expletive expletive] and that he was [expletive] up. He also allegedly said he would have Isbell’s badge, saying “no wonder everyone hates the [expletive] cops, and I’m trying to defend you guys, [expletive] you, I’m writing a column as soon as I get out of [expletive] jail, you [expletive].”

Moreover, Lapotka alleges that Lovato then suggested that since he was the editor of the local newspaper that he “insinuated that his political connections and position as a reporter formed a basis for special treatment.” Lapotka continued, “the defendant’s vitriolic tirade lasted the entire 23-minute trip all the way to the Lake County Jail and continued through the booking procedure.”

Meloy cited numerous cases in his motion to dismiss involving the First Amendment and Fourth Amendment, stating that, “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”

Meloy has also filed a motion to compel the state to produce Isbell’s personnel records. Meloy argues that while Lovato was asked to move away from the scene, Isbell did not “indicate the reason for asking him to move, that he was trying to protect the injured woman, that he was concerned that photographs might impact his investigation, or even that he was involved in the investigation of a crime.”

Meloy continued, “Moreover, and perhaps most importantly, he did not warn the defendant that if he did not move away he would be arrested. Instead, he cuffed the defendant and arrested him.”

The motion to dismiss concludes: “There was simply no probable cause to arrest him... The remedy, apart from a civil suit, is to dismiss the criminal charges.”

Reporter Brittany Brevik may be reached at 758-4459 or by email at bbrevik@dailyinterlake.com.